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The CoR case that’s got everyone talking

June 4, 2015

Picture this. You’re with your mates, out cycling early on a Saturday morning. You’re all street-smart enough to stay out of the way of the cars and freight vehicles.

You’re keeping to the breakdown lane, and keeping a watchful eye over your right shoulder every few moments.

Then everything changes…

That’s what happened to the four cyclists struck by a driver in West Sydney in April 2010. A truck driver lost consciousness, veered out of his lane, and mowed each of them down. Three of the cyclists survived with serious injuries. One didn’t.

Subsequent investigations revealed that the driver had had cannabis in his system –and that he had worked several consecutive 21-hour days in the fortnight leading up to the crash.

CoR Operator prosecuted – but is everyone happy?

The driver pleaded guilty to manslaughter and dangerous driving causing grievous bodily harm. He’s been sentenced to 10 years in jail, with a non-parole period of seven years.

But after conducting an audit, the NSW regulator brought a case against his employer, South Penrith Sand & Soil, as well. They had no plan for fatigue management – as the crash demonstrated.

A detailed case study in this month’s CoR Adviser picks up what happened next. The two directors of the business faced charges too, as did the scheduler they employed.

Combined, the three individuals and the company were fined $88,750. In the Adviser, we break down exactly who copped what, and why. The court’s sentencing approach is detailed, and of interest to anyone who’s interested in how CoR liability will be shared in practice.

But the result has got the NSW transport watchdog saying the law needs a complete rewrite.

Transport for NSW: Change the law

In its submission to the National Transport Commission’s Chain of Responsibility Duties Review, Transport for NSW held out the South Penrith Sand & Soil case as an example of where it says current CoR law isn’t working.

It argues that the current regime is “highly prescriptive”. For well-meaning parties that try and follow all the rules but make a slip-up, this can mean compounding liability for each breach, and situations in which businesses and individuals are unfairly penalised.

On the other hand, it says the penalties where a party has completely failed to honour any of its CoR obligations do not adequately reflect the major safety risks.

In other words, the punishment for small breaches is too high, and the punishment for major breaches is too small.

Transport for NSW also recommends that:
• A new general CoR duty to ensure the safety of road transport operations be created, and that this is applicable to all CoR parties and executive officers;
• Alternative remedies to court-based fines and prosecutions be considered for smaller breaches, and;
• That the investigative powers of regulators be strengthened.

Australian transport ministers met to consider submissions on CoR law changes last month. Soon, we’ll be able to let you know which of these bold suggestions has been taken up – and what could be changing for you.

Until next time,
The CoR Adviser Team